fostering employment equity and diversity in the nova scotia legal

FOSTERING EMPLOYMENT EQUITY AND DIVERSITY 

IN THE NOVA SCOTIA LEGAL PROFESSION 

Employment Equity Guidelines Committee 

August 2000

THE EMPLOYMENT EQUITY GUIDELINES COMMITTEE 

The Employment Equity Guidelines Committee was established in February 1999 by the 

Honourable Russell MacLellan. 

After consultation with the various constituents the following individuals were selected to serve 

on the committee: 

Chair 

Nova Scotia Barrister’s Society 

Mr. Douglas G. Ruck, Q.C. 

Nova Scotia Office of the Ombudsman 

Mr. Craig M. Garson, Q.C. 2 nd Vice President 

Garson, Knox & MacDonald 

Mr. Robert G. MacKeigan, Q.C. 

Cox Hanson O’Reilly Matheson 

Dalhousie Law School 

Ms. Carol A. Aylward, Director 

Law Programme for Indigenous Black & Mi’kmaq 

Mr. Innis Christie, Q.C., Professor 


Dalhousie Black Law Students’ 

Association 

Dalhousie Aboriginal Law Students’ 

Association 

Department of Justice 

Ms. Cora States, President 

Dalhousie Black Law Students’ Association 

Ms. Candy Palmater, President 

Dalhousie Aboriginal Law Students’ Association 

Mr. Douglas Keefe, Executive Director 

Legal Services 

Ms. Margaret MacDonald, Solicitor 


Black Lawyers’ Association of Nova 

Scotia 

Mi’kmaq Justice Institute 

Mr. Burnley A. (Rocky) Jones 

B.A. “Rocky” Jones & Associates 

Ms. Heidi Marshall 

Executive Director

Ms. Heidi Marshall was unable to continue as the appointee of the Mi’kmaq Justice Institute and 

was replaced by Ms. Heather McNeill. Ms. Cora States and Ms. Candy Palmater graduated from 

Dalhousie Law School and Mr. Kelvin Gilpin was elected President of the Dalhousie Black Law 

Students’ Association. Ms. Judith Ferguson replaced Ms. Margaret MacDonald as the 

Department of Justice appointee. 

The committee presently consists of the following members: 

Chair 

Nova Scotia Barristers’ Society 


Nova Scotia Office of the Ombudsman 

Mr. Craig M. Garson, Q.C. 2 nd Vice President 

Garson, Knox & MacDonald 

Mr. Robert G. MacKeigan, Q.C. 

Cox Hanson O’Reilly Matheson 


Ms. Carol A. Aylward, Director 

Law Programme for Indigenous Black & Mi’kmaq 

Mr. Innis Christie, Q.C. Professor 


Dalhousie Black Law Students’ 

Association 


Mr. Kelvin Gilpin, President 

Dalhousie Black Law Students’ Association 

Mr. Douglas Keefe, Executive Director 


Ms. Judith Ferguson, Solicitor 


Black Lawyers’ Association of Nova 

Scotia 

Mi’kmaq Justice Institute 


B.A. “Rocky” Jones & Associates 

Ms. Heather McNeill 

Dalhousie Legal Aid

The Committee wishes to thank the following individuals for their assistance, advice and 

administrative support: 

Non Voting 

Premier’s Office Liaison 

Premier’s Office Liaison 




Ms. Alana Patterson 

Advisor, Priorities & Planning Secretariat 

Ms. Kandace Terris 

Senior Policy Analyst 

(replaced Mrs. Patterson following the 1999 

provincial election) 

Ms. Catherine Meade, Equity Officer 


Ms. Heather Chandler, Equity Officer 


(assumed position of Equity Officer when Ms. 

Meade relocated to Ottawa) 

Ms. Aleta Cromwell, Solicitor

To the Honourable Michael Baker, Q.C. 

Minister of Justice 

The Employment Equity Guidelines Committee is pleased to present it’s report Fostering 

Employment Equity and Diversity in the Nova Scotia Legal Profession. 


Chair 


Ms. Carol A. Aylward 

Ms. Heather McNeill 

Mr. Innis Christie, Q.C 

Mr. Kelvin Gilpin 

* subject to addendum comments 

Mr. Douglas Keefe * 

* subject to addendum comments 

Ms. Judith Ferguson *

TABLE OF CONTENTS 

PART I ...................................................................1 

INTRODUCTION ..........................................................2 

THE COMMITTEE’S APPROACH TO THE TASK ................................4 

EMPLOYMENT EQUITY AND THE CANADIAN CHARTER OF RIGHTS AND 

FREEDOMS .........................................................5 

THE NOVA SCOTIA BARRISTERS’ SOCIETY AND RULE 24 ......................6 

TALKING ABOUT DIVERSITY AND RACISM ..................................9 

THE STATISTICAL PICTURE ...............................................11 

INDIGENOUS BLACKS AND MI’KMAQ PROGRAMME DATA: .............12 

INDIGENOUS BLACKS AND MI’KMAQ PROGRAMME: Employment data: .....13 

EQUITY HIRING GUIDELINES - AN OVERVIEW ...............................16 

PART II .................................................................18 

EMPLOYMENT EQUITY AND AFFIRMATIVE ACTION POLICY ..................19 

BACKGROUND .....................................................19 

POLICY STATEMENT OF THE LEGAL SERVICES DIVISION ...............19 

EMPLOYMENT EQUITY AND AFFIRMATIVE ACTION POLICY FOR CROWN LAW 

AGENTS ...........................................................20 

BACKGROUND .....................................................20 

POLICY STATEMENT ...............................................20 

APPLICATION ......................................................20 

CONDITIONS OF RETAINER ..........................................21 

REQUIREMENTS FOR AN ACTION PLAN ..............................21 

MONITORING AND REMEDIES .......................................23 

DEFINITIONS ......................................................25 

COMMITMENT FOR CROWN LAW AGENTS ..................................26 

PART III ................................................................27 

REGULATIONS MADE UNDER THE 

GOVERNMENT PURCHASES ACT ......................................28

APPENDIX A ............................................................31 

APPENDIX B ............................................................35 

BIBLIOGRAPHY ....................................................36 

ADDENDUM .............................................................41 

EMPLOYMENT EQUITY - ADDENDUM ................................42

PART I 

1

FOSTERING EMPLOYMENT EQUITY AND DIVERSITY 

IN THE NOVA SCOTIA LEGAL PROFESSION 

INTRODUCTION 

The Province of Nova Scotia has, for many years, attempted, through a variety of means, to 

address issues of diversity and affirmative action. However, despite the lessons of history there 

are still those who question the need for programs and policies that promote, encourage and 

enforce equality. Even though significant advances have been made on many fronts Nova Scotia 

continues to struggle with issues of inequality. As with many problems faced by society, 

acknowledging the existence of the problem is the first step towards developing solutions. 

History has clearly shown that ignoring the problems or pretending they do not exist has never 

served as a means of resolution. The historical patterns of exclusion and differential treatment 

serve as one of the most significant hurdles to capitalizing upon the strength of our growing 

diversity. The answer to the problem is not to be found in catchy phrases and/or wishing for 

change. Private and public businesses and institutions must do more than simply state “we support 

equal opportunity”. The barriers will not be removed as a consequence of simple pronouncements 

or one-time cultural awareness programs. 

In Nova Scotia we need only look at our history to see that equal rights have never been provided 

voluntarily. Repeatedly, it has been shown that progress has only been achieved through 

enforcement mechanisms including legislation, regulatory requirements and judicial review. This 

has been reflected in all segments of society including education, housing and employment. 

Affirmative action and equity programs are not to be viewed as the panacea to correct all the 

socio-economic problems of society. Unfortunately however, such programs are often represented 

as concerned exclusively with quotas or having the result of lowering standards by hiring and 

promoting unqualified people. This position, however, has never been supported by reference to 

any specific laws, regulations or programs, that require an employer to lower standards or hire the 

unqualified. 

Diversity initiatives are required to meet the changes which are on the horizon for Nova Scotia. 

As the work force changes the pressure to accommodate different cultural values will increase. 

The issues are complex and will invariably affect the entire workforce of Nova Scotia. This report, 

however, is concerned primarily with employment of indigenous Black and Mi’kmaq in the legal 

profession. 

In February 1999, then Premier, Russell MacLellan, announced the formation of the Employment 

Equity Guidelines Committee to develop guidelines to increase the number of indigenous Black 

2

and native lawyers employed at law firms in Nova Scotia. In particular the Premier stated that the 

mandate of the committee is to recommend employment equity guidelines for all firms that do 

business with the provincial government. (Appendix “A”). 

The mandate of the committee was confirmed by Premier John Hamm in his letter of December 

1999 and attached hereto as Appendix “A”. 

3

THE COMMITTEE’S APPROACH TO THE TASK 

As a consequence of varying levels of understanding and differences in background the first step 

in the process was to examine existing federal and provincial legislation, regulations, policies and 

programs. Particular attention was paid to Section 15 of the Canadian Charter of Rights and 

Freedoms. 

We also conducted a review of the programs and policies in place in other Canadian provinces 

and in the United States of America. See Appendix “A” for a complete list of the material 

reviewed by the committee. 

The committee also invited several provincial and federal representatives to make presentations on 

their experiences with designing and implementing affirmative action and equity programs. 

The consultation process served several important purposes: 

S it provided for the involvement of others in the process to assist in developing sound and 

workable employment equity guidelines 

S it gave the committee insight and an opportunity to discuss and explore the issues surrounding 

employment equity 

S it provided an explanation of the rationale behind the existing programs 

4

EMPLOYMENT EQUITY AND THE CANADIAN CHARTER OF RIGHTS AND 

FREEDOMS 

The Canadian Charter of Rights and Freedoms recognizes the need for special programs to 

eliminate discriminatory practices and redress imbalances. Section 15 states: 

15 (1) Every individual is equal before and under the law and has the right to the equal 

protection and equal benefit of the law without discrimination based on race, national or 

ethnic origin, colour, religion, sex, age or mental or physical disability. 

(2) Subsection (1) does not preclude any law, program, or activity that has as its object 

the amelioration of conditions of disadvantaged individuals or groups including those that 

are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age, or 

mental or physical disability. 

The committee accepts that the reduction and eventual elimination of the circumstances and 

conditions that have prevented certain groups from attaining employment equity is a constitutional 

goal and Section 15 requires a broad and generous interpretation. Moreover the committee 

accepts that Section 15 supports the principle that employment equity means more than treating 

people in the same way but also requires special measures and the accommodation of differences. 

5

THE NOVA SCOTIA BARRISTERS’ SOCIETY AND RULE 24 

The Nova Scotia Barristers’ Society has recognized that the legal profession must not only reflect 

the diversity of the society it serves, but also embrace the belief that fair representation and equal 

access are essential to ensure a system of justice that is unbiased. The Barristers’ Society adopted 

specific language proscribing discriminatory practices by lawyers. In its Rules of Legal Ethics and 

Professional Conduct the Bar Society at Rule 24 states: 

24. Discrimination 

Rule 

A lawyer has a duty to respect the human dignity and worth of all persons and to 

treat all persons with equality and without discrimination. 

Guiding Principles 

A lawyer discriminates in contravention of this Rule when a lawyer makes a 

distinction based on an irrelevant characteristic or perceived characteristic of an 

individual or group such as age, race, colour, religion, creed, sex, sexual 

orientation, disability, ethnic, national or aboriginal origin, family status, marital 

status, source of income, political belief or affiliation, if the distinction has the 

effect of imposing burdens, obligations, or disadvantages on an individual or on a 

group not imposed on others or if the distinction has the effect of withholding or 

limiting access to opportunities, benefits, or advantages available to individuals or 

groups in society. 

Commentary 

24.1 A lawyer has a duty to ensure that no one is denied services or receives 

inferior service because of any irrelevant characteristics or beliefs including those 

enumerated in the Guiding Principles. 

24.2 A lawyer has a duty to ensure that the lawyer's employment practices do not 

offend the Rule or the Guiding Principles. 

24.3 This Rule should be read in conjunction with Chapters 1 and 23 and 

Commentary 18.9.1 

24.4 This Rule does not preclude making distinctions 

(a) based on a bona fide qualification, or 

6

(b) where such discrimination is a reasonable limit prescribed by law as can be 

demonstrably justified in a free and democratic society. 

24.5 This Rule does not apply to bona fide retirement or pension plans or terms 

and conditions of group or employee insurance plans based on age, or bona fide 

mandatory retirement plans, schemes or practices. 

24.6 This Rule does not preclude any program, activity or affirmative action that 

has as its object the amelioration of conditions or disadvantages for individuals or 

groups including those who are disadvantaged because of a characteristic referred 

to in the Guiding Principles. 

The Barristers’ Society also provided the following notes to Rule 24 to assist its members 

to better understand and appreciate the significance of Rule 24: 

Notes 

1. A lawyer has a duty to become familiar with and understand Section 15 of the 

Canadian Charter of Rights and Freedoms and provincial and federal human rights 

legislation. A lawyer should cultivate a knowledge and understanding of Canadian 

jurisprudence on the meaning of equality and discrimination and on adverse impact 

analysis, both of which warn of the danger of assuming that good intentions or 

uniform rules necessarily accomplish equality. 

2. In the case of Gene Keys v. Pandora Publishing Association (March 17, 1992), 

a Nova Scotia Human Rights Board of Inquiry held that in order to achieve 

equality for a disadvantaged group, sometimes the different treatment of 

non-disadvantaged groups was necessary. That case involved a complaint by a man 

against a feminist newspaper that refused to print his letter to the editor in the 

newspaper. He claimed that he was being discriminated against on the basis of sex. 

The Board of Inquiry stated: 

I am also satisfied that as a matter of law the concepts of equality and 

discrimination under the Act must be consistent with those concepts in the Charter. 

McIntyre, J. in Andrews stated that the promotion of equality in the prohibition 

against discrimination has a more specific goal than the mere elimination of 

distinctions and that identical treatment may produce inequality. It follows, 

accordingly, that a disadvantaged group may undertake a program or activity 

which has as its object the amelioration of conditions of disadvantaged individuals 

or classes of individuals including those discriminated against on the basis of sex 

even if that results in distinctions being made with respect to the advantaged 

group. 

7

It is important to note that Rule 24 at 24.6 reflects and supports the same principle 

as found at Section 15(2) of the Canadian Charter of Rights and Freedoms. The 

role and need for special programs to eliminate discriminatory practices and 

redress imbalances. 

8

TALKING ABOUT DIVERSITY AND RACISM 

The members of the employment equity committee represent a microcosm of the Nova Scotia 

legal community. The committee consists of members of the private bar, academics, government 

lawyers, law students, senior counsel, African Canadians, First Nations and article clerks. It soon 

became evident that the members came to the committee with diverse views and varying levels of 

understanding, knowledge and experience of employment equity. 

Talking about diversity and racism is not an easy task, particularly in a group that consists of 

people of other races, classes, gender and status. But if progress is to be made we must learn to 

discuss race openly and effectively in order to collaborate in programs and initiatives that will 

make our increasingly ethnic diverse society productive and functional. 

As difficult as some may find it to talk about race it is equally true that it is often just as difficult 

to listen. The difficulty is sometimes due to the fact that we do not wish to listen or perhaps we 

do not know how to listen. Attempts at conversation often produce discomfort, heated 

interactions and patterns of attack and defense that deteriorate into debate and argument rather 

than dialogue. 

Talking about race forces us to look at ourselves, our own prejudices, privileges and suffering. As 

well, we bring to the table different levels of understanding or information about race and racism. 

We are sometimes reluctant to talk about race because of the fear of exposing our ignorance or 

lack of understanding of the issues. 

Talk alone does not lead to change. The work of the committee must lead to action, to well 

conceived, well developed and well implemented programs that will address the systemic 

manifestations of racism that exist within the legal community. 

The first step of the committee has been to talk and learn how to understand, explore and deal 

with personal and institutional racism and to collaborate with their fellow committee members to 

structure guidelines that in the words of Judge Rosalie Abella constitute a “strategy designed to 

obliterate the present and the residual effects of discrimination and to open equitably the 

competition for employment opportunities to those arbitrarily excluded. It requires a special blend 

of what is necessary, what is fair and what is workable.” 

If we are to effectively address discrimination and racism we must acknowledge their long history 

in language. In this world of politically dominant and sub dominant peoples the language of the 

dominant or elite will generally hold sway. In his book Elite Discourse and Racism, Newbury 

Park, CA: Sage, 1993, Teun A. van Dijk, contends that a politically dominant group’s language 

can define situations and impose certain meanings on situations. Consequently the non dominant 

group may unwittingly find that it is ensnared in language which is pejorative. This occurrence 

may lead to loss of self esteem and self confidence. Therefore the move towards a redefinition of 

9

terms by previously oppressed peoples is a regaining of self esteem and an increase in confidence. 

Language may also be utilized as a smoke screen. Thus a person may be saying one thing while 

thinking and meaning something else. While this may be an unconscious occurrence it is also 

possible as conscious processing. It is not an uncommon occurrence to learn that someone has not 

been hired or kept on by a firm because it was not the right “fit”. The term “fit”, however, may 

mask a conscious or unconscious discriminatory practice within the hiring process. “Fit” when 

used in this context is generally a reflection of one’s personal or cultural assessments derived from 

shared values with candidates rather than a comparison of skills. If such is the case the result is an 

unfair barrier. 

10

THE STATISTICAL PICTURE 

The Royal Commission into the Donald Marshall Junior prosecution recognized that historically 

Blacks and Mi’kmaqs have been excluded from the practice of law. The Royal Commission 

recommended that the Government of Nova Scotia, the Nova Scotia Barristers’ Society and the 

Dalhousie Faculty of Law co-operate in the development of a program to identify, recruit and 

support qualified Black and Mi’kmaq students aspiring to legal careers. 

Prior to the Marshall Inquiry there were nine Black lawyers in the province of Nova Scotia not all 

of whom were practicing law. The first native born Black Nova Scotian to graduate from 

Dalhousie Law School was James Robinson Johnston in 1898. It was fifty-four years later that 

the next native born Black Nova Scotian graduated in 1952. 

It was in the 1960's that the first Black lawyer was hired by a private law firm. From the 1970's to 

the time of the introduction of the Indigenous Blacks and Mi’kmaq Programme at Dalhousie Law 

School in 1989 there were five indigenous Black Nova Scotia graduates. 

In the case of Mi’kmaq lawyers, prior to the Indigenous Black and Mi’kmaq Programme, there 

were no Mi’kmaq lawyers in Nova Scotia. The 1876 Indian Act specifically provided that any 

Aboriginal person admitted to medical or law school would be enfranchised under the provisions 

of the Act. The provision was repealed in 1951 but it must be acknowledged that the defacto 

exclusion existed until the implementation of the Indigenous Blacks and Mi’kmaq Programme in 

1989. In 1992, the first Mi’kmaq graduated from Dalhousie Law School and it was in 2000 when 

the first Mi’kmaq was hired as a lawyer by a private law firm. 1 

The statistical information with respect to the number of Indigenous Blacks and Mi’kmaq in the 

legal profession in Nova Scotia has shown a slight amelioration but in the absence of 

implementing employment equity guidelines the picture is not promising. There is a marked 

imbalance in the legal community particularly in the private bar. 

The current statistical information as set out at pages 12 to 15 indicates that there has been 

incremental progress. In other words the legal profession as a whole has shown an increase in the 

number of Indigenous Blacks and Mi’kmaq lawyers. The most dramatic increase has been in the 

number of Indigenous Blacks and Mi’kmaq students attending law school. There is little question 

that this dramatic rise relates directly to the IB&M program that was introduced at Dalhousie 

Law School in 1989. 

Despite the increase in the number of law students and graduates there has been only incremental 

progress, particularly in the area of private practice. The increase has been marginal at best and 

1 The Race Relations Committee of the Nova Scotia Barristers’ Society commissioned a report on the 

Aboriginal Lawyers Survey. The document is presently in draft form and was not available to the Committee. 

11

advancement within the firms appears to be minimal. There continue to exist formidable obstacles 

to full and equal participation within the private bar. 

The Nova Scotia government and in particular the Department of Justice, as shown by the 

statistical information, has hired graduates of the IB&M Program. It must be noted, however, 

that consistent with current government hiring policies the graduates have not been hired as 

permanent full time employees but rather on a contract basis. Government is therefore 

encouraged to examine its hiring policy in light of the impact it has upon the retention and 

promotion of Indigenous Black and Mi’kmaq lawyers within government. 

The difficulties and obstacles experienced by Indigenous Blacks and Mi’kmaq lawyers at the 

private bar is indicative of the inequities that have existed historically within the Province of Nova 

Scotia. The struggle however to remedy and redress past and present inequities is ongoing. The 

legacy of racism will not on its own volition wither and go away rather it requires the assistance 

of those in positions of power and influence. Government and our political leaders occupy such a 

position and by their efforts can make the greatest strides towards removing the systemic barriers 

to full and equal participation at all levels of society. 

INDIGENOUS BLACKS AND MI’KMAQ PROGRAMME DATA: 

GRADUATES 

Number of Graduates since 1989 63 

Number of Black Graduates 37 

Number of Mi’kmaq Graduates 26 

Number of Indigenous Black Graduates 35 

Number of Non-Indigenous Black Graduates 02 

NUMBER OF STUDENTS CURRENTLY ENROLLED IN THE IB&M PROGRAM 

{28 First, Second, and Third Years} 

Black Students 

Number of Indigenous Black Students 12 

Number of Non-Indigenous Black Students 09 

12

Mi’kmaq Students 

Number of Mi’kmaq Students 07 

INDIGENOUS BLACKS AND MI’KMAQ PROGRAMME: Employment data: 

Graduate Employment Report 

[the following data tracks graduates from 1992 (first graduating class) through 2000] 

1992 

Four Graduates 

One is a Private Sole Practitioner 

One is a Government lawyer (Workers’ Advocacy) 

One is an R.C.M.P. officer 

One Aboriginal Organization Legal Counsel (Treaty and Aboriginal Rights) 

1993 

Ten Graduates 

Two are Private Sole Practitioners 

One is a Government lawyer 

One is working with an Aboriginal Organization 

One is a University teacher/administrator 

One is working for a Government Organization 

One is unemployed 

One is a University teacher 

One is non-practicing 

One returned to University (non-law) 

1994 

Ten Graduates 

One is in a law firm in Saskatchewan 

One is in a law firm in Ontario 

One is in a law firm in British Columbia 

One is in a law firm in New Brunswick 

One is in a Government Agency in Alberta 

Two Dalhousie Legal Aid Clinic 

Two Per Diem Crown Attorneys 

One is a Legal Advisor for an Aboriginal Organization 

13

1995 

Eight Graduates 

Two are with law firms in Nova Scotia 

Two are with the Provincial Government 

Two are with the Federal Government 

One is with a Black Community Organization 

One is with an Aborginal Organization 

1996 

Eleven Graduates 

Three are with Aboriginal Organizations 

Three are with Nova Scotia Legal Aid 

One is with Health Canada (Policy Analyst) 


One is in-house counsel 

One is in New Brunswick 

One is in Ontario 

1997 

Five Graduates 

One is in a law firm in Nova Scotia 

One is in a law firm in Ontario 

One is with the Federal Government 

One is with Department of Justice, Nova Scotia 

One is in the United States of America 

1998 

Six Graduates 

One is in Ontario 

One is with the R.C.M.P. 

One is with an Aboriginal Organization 

One is with the Department of Justice, Nova Scotia 

One is in a law firm in Alberta 

One is in a law firm in Newfoundland 

1999 

Six Graduates 

One is completing Master’s degree (outside law) 

One is with a law firm in Newfoundland 


One is the Federal Department of Justice 

One is with a law firm in Nova Scotia 

One is with the Department of Justice, Nova Scotia 

14

2000 

Three Graduates 

One is with Department of Justice, Nova Scotia 


One is with a law firm in New Brunswick 

15

EQUITY HIRING GUIDELINES - AN OVERVIEW 

The committee recognizes that a commitment to employment equity and affirmative action will 

only be effective if law firms have good human resource practices in order to create a workplace 

that welcomes diversity and recognizes ability. Good intentions are not enough and a compliance 

regime is required if the government is to be fair to both indigenous Black and Mi’kmaq lawyers 

and law firms that achieve employment equity. 

By adopting an employment equity policy and enforcing it, the government can ensure that law 

firms not only make a commitment to good practice but implement good practices. 

The committee drafted a policy that would not only require law firms to adopt an affirmative 

action program but also provide a checklist of steps any employer should undertake. The policy, 

as set out in Part II of this report, opens with a description of employment equity and affirmative 

action and a commitment to use only private law firms that are in compliance with the policy. 

Law firms would be required to commit to employment equity and make the commitment known 

to its workforce. We believe law firms that make the commitment will wish to keep the 

commitment and that the commitment will itself create an impetus toward an open, welcoming 

workplace for all members of equity seeking groups. 

At the centre of the policy is the action plan. The action plan promotes good human resource 

practices such as up-to-date position descriptions and equitable hiring, promotion and retention 

practices. But it also allows the Department of Justice to monitor the performance of the law firm 

in achieving its affirmative action targets and goals. This entails numerical goals and objectives. 

In encouraging law firms to achieve numerical goals the Equity Hiring Guidelines do not require 

the hiring of a person who does not have the qualifications to perform the job properly, nor do the 

guidelines call for the hiring of an unqualified person in preference to a candidate who is qualified. 

The goal setting process is used to target and measure the effectiveness of the Equity Hiring 

Guidelines. Moreover the guidelines incorporate a flexibility designed to ensure that the 

numerical objectives are realistically established in consultation with the law firms. Compliance is 

measured by whether the firm has made good faith efforts to meet its goals. Failure to meet goals 

is not a violation of the equity hiring guidelines provided the firm satisfies the Minister it has made 

its best effort to comply. 

The Department of Justice representatives on the Committee, Doug Keefe and Judith Ferguson, 

expressed some concern about numerical goals and objectives and requested that an addendum be 

attached to this report. 

16

The committee recognizes that no two law firms in Nova Scotia are the same and as much as 

there is diversity among lawyers there is diversity among law firms. There are very few large 

firms in the Province of Nova Scotia. So, rather than laying down rigid rules and quotas, the 

Committee has instead recommended that the law firms develop action plans that are appropriate 

to their circumstances. 

Central to enforcement of the policy is thecommittee’s view that the province can use its 

commercial buying power to require employment equity and affirmative action programs of the 

law firms it does business with. No Nova Scotia law firm would be retained under this policy 

unless it is on an eligible list created by the Department of Justice. The policy outlines the steps a 

firm must take in order to be on the eligible list and how a firm can be removed by the 

Department of Justice if it fails to keep its commitments or to make best efforts to keep its 

commitment. The committee believes that the requirements of this policy should be enforceable 

as regulations under the Government Purchases Act, (Part III of the report), and also as a term of 

retainer for each law firm doing business with government. 

We believe the policy, together with the government’s enforcement of it, will tip the balance in 

many firms that are well disposed to the practice but have not given affirmative action a high 

enough priority in any particular hiring opportunity. Affirmative action succeeds or fails in each 

hiring, promotion and retention decision made by a law firm. 

An important aspect of the Equity Hiring Guidelines is public oversight. Public oversight will 

ensure accountability on the part of government and the law firms to achieve the goals and 

objectives of the Employment Equity and Affirmative Action Plan. Oversight will also help to 

ensure timely and effective progress. 

Finally, the policy calls upon the Department of Justice to designate one of its lawyers to oversee 

the program and compliance by the law firms and to help law firms implement employment equity. 

The Department should make the mechanics of compliance as easy for law firms as possible by 

developing information packages and by working on a frequent basis with law firms in order to 

not only ensure compliance but to obtain whole-hearted co-operation and support for the policy. 

17

PART II 

18

NOVA SCOTIA DEPARTMENT OF JUSTICE 

LEGAL SERVICES DIVISION 

EMPLOYMENT EQUITY AND AFFIRMATIVE ACTION POLICY 

BACKGROUND 

Employment equity, as a broad principle, ensures a fair and representative workforce. 

Employment equity is achieved through employment practices that prevent and correct 

disadvantages in employment through special measures, reasonable accommodation of 

differences, and programs to remove barriers to equitable employment opportunities. 

This policy also incorporates an affirmative action requirement to promote the hiring of 

Indigenous Black and Mi'kmaq lawyers with the goal of achieving and maintaining a 

representative workforce within the Legal Services Division. 

POLICY STATEMENT OF THE LEGAL SERVICES DIVISION 

It is the policy of the Legal Services Division to: 

1. provide equal access to employment and career opportunities to ensure equitable 

representation at all levels within the Legal Services Division; 

2. develop, implement and maintain an affirmative action plan to ensure the equitable 

representation of Indigenous Black and Mi'kmaq lawyers within the Legal Services 

Division; 

3. use private law firms in compliance with the Employment Equity and Affirmative Action 

Policy for Crown Law Agents; and 

4. look for opportunities to direct legal work to lawyers of colour and aboriginal ancestry. 

The Legal Services Division fully supports employment equity and is committed to undertaking 

special measures, where necessary, to eliminate disadvantages. 

It is also the policy of the Legal Services Division to encourage respect for, commitment to, and 

implementation of the principles of employment equity and affirmative action by law firms 

retained to perform legal work for the Province of Nova Scotia. 

19

PROVINCE OF NOVA SCOTIA 

EMPLOYMENT EQUITY AND AFFIRMATIVE ACTION POLICY FOR 

CROWN LAW AGENTS 

1. BACKGROUND 

Employment equity, as a broad principle, ensures a fair and representative workforce. 

Employment equity is achieved through employment practices that prevent and correct 

disadvantages in employment through special measures, reasonable accommodation of differences 

and programs to remove barriers to equitable employment opportunities. 

This policy also incorporates an affirmative action requirement to promote the hiring of 

Indigenous Black and Mi'kmaq lawyers with the goal of achieving and maintaining a 

representative workforce within the law firms retained to perform legal work for the Province of 

Nova Scotia. 

Where it is appropriate to use a private law firm, the Province will: 

1) use law firms that are in compliance with this policy; and 

2) look for opportunities to direct legal work to lawyers of colour and aboriginal 

ancestry. 

2. POLICY STATEMENT 

Law firms that wish to be retained as Crown Law Agents must: 

(a) 

(b) 

provide equal access to employment and career opportunities to ensure equitable 

representation at all levels within the law firm; and 

develop, implement and maintain an affirmative action plan to ensure the equitable 

representation of Indigenous Black and Mi'kmaq lawyers within the law firm. 

To this end, law firms must, as a condition of their retainer, comply with the requirements set out 

in this policy. 

3. APPLICATION 

This policy applies to all Nova Scotia law firms performing legal work for the Province of Nova 

Scotia. 

20

4. CONDITIONS OF RETAINER 

All law firms are required as conditions of their retainer as Crown Law Agents to: 

4.1 sign the commitment for Crown Law Agents; 

4.2 communicate their commitment to all current and prospective staff; 

4.3 agree to develop an Employment Equity and Affirmative Action Plan (the “Action 

Plan”) that meets the criteria set out in this policy; 

4.4 implement an Action Plan that meets the criteria set out in this policy; 

4.5 post the firm’s commitment to employment equity and ensure that the Firm’s 

Co-ordinator 2 has discussed the Action Plan with each partner and employee of the 

firm; 

4.6 agree to report such information to the Legal Services Division Co-ordinator 3 not 

less often than annually as well as upon request; and 

4.7 not discriminate contrary to the Human Rights Act. 

5. REQUIREMENTS FOR AN ACTION PLAN 

An Action Plan may include any measures the law firm deems appropriate to achieve a 

representative workforce but must include: 

5.1 Designation of a senior partner of the firm (the Firm’s Co-ordinator) who shall be responsible 

for: 

a) developing the firm's Action Plan; 

b) day-to-day monitoring of the implementation of the Action Plan; and 

c) communicating with the Legal Services Division’s Co-ordinator (the Legal 

Services Division Co-ordinator). 

All law firms having 15 or more lawyers shall establish a committee to advise the Firm’s 

2 

See 5.1 below 

3 

See 5.1c) below 

21

Co-ordinator on employment equity and affirmative action issues. 

5.2 A description of the responsibilities of supervisory and management personnel for 

implementation of the Action Plan and their accountability through performance appraisals 

and compensation reviews. 

5.3 Development of measurable goals for the recruitment, hiring, retention and advancement to 

partnership of Indigenous Black and Mi'kmaq lawyers within the firm including the 

establishment of : 

a) numerical goals and timetables for the hiring, training and promotion of 

Indigenous Black and Mi'kmaq lawyers; and 

a) a detailed description of how the law firm will achieve its measurable goals 

and remedy any inequities. 

5.4 A system to collect information and report periodically on the employment status of 

Indigenous Black and Mi’kmaq lawyers within the law firm in terms of hiring, promotion and 

termination in relation to all other lawyers within the law firm. 

Each report must contain the following for each job category: 

-total number of lawyers 

-number and percentage of Indigenous Black females; 

Indigenous Mi’kmaq females; Indigenous Black males; and 

Indigenous Mi’kmaq males. 

Job categories include, but are not limited to: 

Articled Clerks 

Summer Research Assistants 

Paralegals 

Associates 

Partners 

Law firms may report other employment status information which demonstrates the 

furtherance of employment equity. 

5.5 A review of the recruitment, hiring, retention and advancement policies, practices and 

systems, whether formal or informal, to remove barriers to equitable employment 

opportunities and ensure a fair and representative workforce. 

22

5.6 A review of job descriptions to ensure that they accurately reflect the job and employment 

requirements. 

5.7 Broadening the distribution of recruitment notices to include diverse organizations/groups 

likely to promote employment equity and affirmative action. 

5.8 A requirement that the firm’s recruiters complete employment equity and diversity education. 

5.9 Development of interview procedures for all positions using only job-related questions based 

on the job description. 

5.10 Identification of other means to strengthen the law firm’s equitable recruitment, hiring, 

retention and advancement. 

5.11 Implementation of a voluntary exit interview program and employee assistance program. 

5.12 Onsite education on employment equity and affirmative action issues and initiatives for all 

partners and employees. 

5.13 Establishment of a method or system for internal monitoring to regularly review results 

of the Action Plan that specifies the frequency of reviews, the individuals performing the 

reviews and the results of the review. 

5.14 Establishment of an internal complaint resolution procedure to address complaints dealing 

with employment equity and affirmative action. 

6. MONITORING AND REMEDIES 

6.1 No Nova Scotia law firm will be engaged to perform legal work until a signed Commitment 

For Crown Law Agents is filed with the Department of Justice (the Department). 

6.2 Law firms that comply with clause 4 will be placed on an eligibility list. 

6.3 The law firm’s Action Plan must be filed within 3 months of the Department receiving the 

firm’s signed Commitment For Crown Law Agents. 

6.4 The Department will determine whether the Action Plan is acceptable. If the Action Plan is 

not acceptable, the Department will contact the firm, suggest changes and provide the firm 

with a deadline to file an amended Action Plan. 

6.5 The law firm may amend its Action Plan at any time with the approval of the Department. 

23

6.6 The law firm will report to the Department, in accordance with the following procedure: 

Initial Report to be filed within 3 months of filing an acceptable Action Plan with the 

Department. The report will describe the implementation of the firm’s goals and objectives 

as outlined in its Action Plan. 

Annual Report to be filed by June 1st. The Annual Report will describe the law firm’s 

compliance with the Conditions of Retainer as outlined under clause 4, the law firm’s 

compliance with the reporting requirements under sub-clauses 5.3 and 5.4, the law firm’s 

compliance with its Action Plan and highlight any changes since the filing of the last report. 

Additional Reports are to be filed as may be requested by the Department. 

6.7 All law firm Co-ordinators must attend an annual meeting hosted by the Department to 

discuss progress in implementing Action Plans, review best practices and discuss 

employment equity and affirmative action issues. 

6.8 Non-compliance with sub-clauses 6.3, 6.4, 6.6 or 6.7 will result in firms being removed from 

the eligible list. 

6.9 If upon receipt of the Reports as outlined in sub-clause 6.6, the Department determines that 

the law firm has not complied with the reporting requirements and no explanation acceptable 

to the Department is given, the law firm will be removed from the eligible list and the 

Department may hold back 20% of the fees owing to the law firm. 

6.10 The Department will exercise its discretion to accept an explanation in sub-clause 6.9 only in 

the clearest of cases, where the law firm has satisfied the Department of its best efforts to 

comply. 

6.11 It is desirable that the public understand the steps law firms are taking to comply with this 

policy. It is the Department of Justice’s position that, subject to the Freedom of Information 

and Protection of Privacy Act (FOIPOP), the public should have access to information 

contained in Action Plans. However, the Department recognizes that Action Plans may 

contain information that is confidential within the meaning of FOIPOP and will be dealt with 

in accordance with FOIPOP. 

Disclosure of confidential information requires that: 

• notice be given to the third party that a request has been made for the record 

unless the third party views have already been communicated to government; 

and 

24

• where notice is given, the third party be given an opportunity to make 

representations concerning disclosure. 

In order to assist in assessing whether an Action Plan contains confidential information, law 

firms are advised to identify portions of the Action Plan that, in their view, are confidential. 

7. DEFINITIONS 

7.1 Indigenous Black- means for the purposes of this policy, a person of African ancestry who 

was born in the Province of Nova Scotia or who has been primarily educated in the Province 

of Nova Scotia. 

7.2 Primarily educated- means a person of African ancestry who attended primary or secondary 

school in the Province of Nova Scotia for a minimum period of five years. 

7.3 Mi’kmaq- means for the purposes of this policy, a person of Mi’kmaq ancestry whether born 

in Nova Scotia or not. 

7.4 Lawyer- means a graduate of a law school and, for the purposes of this policy, includes a 

person enrolled in a law school. 

7.5 Regulation- means a regulation made under the Government Purchases Act. 

7.6 Employment Equity and Affirmative Action Plan(the“Action Plan”)- a written document 

as defined in clause 5 committing the law firm to a program designed to achieve a balanced 

workforce within a reasonable period of time. 

25

COMMITMENT FOR CROWN LAW AGENTS 

This law firm is committed to achieving and maintaining a fair and representative workforce by: 

a) the elimination of barriers to employment and success in employment of members of underrepresented 

groups through the establishment of a favorable climate within the law firm; and 

a) developing and implementing an affirmative action plan in respect of Indigenous Black and 

Mi’kmaq lawyers. 

Date: 

Law Firm Representative: 

26

PART III 

27

REGULATIONS MADE UNDER THE 

GOVERNMENT PURCHASES ACT, 

R.S.N.S., 1989, c. 188, subsection 9(3)(c) 

Citation 

1 These regulations may be cited as the employment equity and affirmative action requirements 

for legal services. 

Definitions 

2 In these regulations 

(a) 

(b) 

(c) 

"action plan" means an employment equity and affirmative action plan filed by 

a law firm and approved by the Minister; 

"commitment for Crown law agents" means an undertaking given on behalf 

of a law firm regarding employment equity and affirmative action that is 

acceptable to the Minister; 

"coordinator" means a coordinator of employment equity and affirmative 

action designated by a law firm as responsible for 

(i) 

(ii) 

(iii) 

developing the law firm's action plan, 

day-to-day monitoring of the implementation of the action plan, and 

communicating with the coordinator appointed by the Minister; 

(d) 

(e) 

(f) 

(g) 

"indigenous Black" means a person of African heritage who was born in the 

Province or who attended a primary or secondary school in the Province for 

a minimum of five years; 

"law firm" means a law firm maintaining a permanent office for the practice 

of law in the Province; 

"lawyer" means a graduate of a law school and includes a person enrolled in 

a law school; 

"Mi’kmaq" means a person of Mi’kmaq ancestry whether born in the Province 

or not; 

28

(h) 

"Minister" means the Minister of Justice. 

3 (1) The Minister shall maintain a list of law firms eligible to provide legal services to the 

government of Nova Scotia. 

(2) No law firm shall perform legal services for the government of Nova Scotia except 

an eligible law firm. 

4 A law firm is eligible if the law firm has: 

(a) 

(b) 

filed its commitment for Crown law agents; 

appointed a coordinator and filed an action plan acceptable to the Minister 

within three months of filing the law firm’s signed commitment for Crown law 

agents. 

5 (1) An eligible law firm becomes ineligible if it fails to 

(a) 

comply with it's commitment for Crown law agents or its action plan; 

(b) report in accordance with Section 6; 

(c) 

appoint a coordinator. 

(2) Notwithstanding subsection (l) where the Minister determines that a law firm has 

made its best effort to comply with subsection (l), the Minister may determine the law 

firm is eligible. 

(3) The Minister will exercise the discretion in subsection (2) only in the clearest of cases 

where the law firm has satisfied the Minister of its best efforts to comply. 

6 The law firm may amend its action plan at any time with the approval of the Minister. 

7 (1) The law firm will file with the Minister 

(a) 

(b) 

within three months of approval of its action plan, an initial report describing 

the implementation of the law firm's action plan; 

an annual report, during the month of May each year describing 

(i) 

(ii) 

the law firm's compliance with its action plan, 

any events of significance to the action plan since the last report. 

29

(2) The Minister may require such additional reports as the Minister deems appropriate. 

30

APPENDIX A 

31

APPENDIX B 

35

BIBLIOGRAPHY 

NOVA SCOTIA 

• deBerdt Romily, Heather A., 1994. Technical University of Nova Scotia: Employment Equity 

Work Plan, Halifax: Technical University of Nova Scotia. 

• Government Departments. Nova Scotia Department of Human Resources and the Nova 

Scotia Human Rights Commission. 1997. Agreement Re: Affirmative Action Plan. 

• Meade, Catherine. 1997. Race Related Issues within Nova Scotia's Legal Community. 

Memo to Bar Council, February 21. 

• Nova Scotia Barristers' Society. 1997. Pursuing the Law: The Experience and Perceptions 

of African, East Indian and Caucasian Canadian In Becoming Lawyers and In Practice in 

Nova Scotia. 

• Black Lawyer’s Association Of Nova Scotia, Carol Aylward, Acting Vice-President 

Memorandum to The Honourable Wayne Adams Re: "Possible Contract Compliance 

Remedies for Dealing With Discrimination Within the Legal Profession", February 1, 1994. 

• Nova Scotia Barrister’s Society, 1997 (Executive Summary Report)"Pursuing the Law: The 

Experiences and Perceptions of African, East Indian, and Caucasian Canadians in 

Becoming Lawyers and in Practice in Nova Scotia" 

• Nova Scotia Human Rights Act, R.S.N.S., 1989, C. 214, as amended. 

• Royal Commission on the Donald Marshall, Jr., Prosecution "Discrimination Against Blacks 

in Nova Scotia: The Criminal Justice System", Vol. 4, 1989. 

CANADA 

• Employment and Immigration Canada. 1987. Employment Equity: A Guide for Employers. 

• Employment and Immigration Canada. 1991. Employment Systems Review Guide. 

• Employment and Immigration Canada. 1991. Employment Equity: A Guide for Employers 

• Human Resources Development Canada 1998. Employment Equity: A Guide for Employers 

• Human Rights Canada. 1998. Annual Report "Employment Equity". 

36

• Law Society of Upper Canada. 1997. Guide to Developing a Policy Regarding Workplace 

Equity in Law Firms. 

• Nova Scotia School Boards Association and Canadian Heritage. Employment Equity and 

Good Education: Planning Now for the Future. A Report of the Proceedings of Phase III 

of NSSBA's Employment Equity Project. 

• Queen's University. 1995. Queen's University Recruitment and Hiring for Faculty 

Appointments 

• Treasury Board of Canada. 1996. Aboriginal Business Procurement Policy and Incentives. 

• Yukon Public Service Commission. Employment Equity Planning: The Basics "We're All 

Part of the Picture". 

• Canadian Charter of Rights and Freedoms, ss.15(1) and 15(2) Part 1, Constitution Act, 

1982. 

• Department Of Justice Canada: "Policy On Workplace Equity For Legal Agents". 

• Employment Equity Act, 1995, c. 44 

• Equity Services "Steps in Implementing A [affirmative action] Plan" 

• Halfkenny, Thereasa, Comeau, Madeline, Human Resource Development Canada: 

Workplace 

• "Racial Equality in the Canadian Legal Profession", Presented to the Council of the 

Canadian Bar Association, February 1999, By the Working Group on Racial Equality in the 

Legal Profession. 

• Law Society Of Upper Canada, "Guide To Developing A Policy Regarding Workplace 

Equity In Law Firms" 

• Treasury Board of Canada: Contracting Policy Notice 1996-2. Summary: The Government 

Has Approved a Strategy to promote Aboriginal Business Development Through The 

Federal Government Procurement Process...." 

37

UNITED STATES 

• American Bar Association. Commission on Opportunities for Minorities for the Profession. 

1998. Miles to Go: Progress of Minorities in the Legal Profession. 

• California Minority Counsel Program. Diversity Matters. 

• California Minority Counsel Program. 1998. Diversity Matters. Annual Report. 

• Connecticut. Office of the Attorney General. Hiring/Promotion Goals and Timetables. 

• Florida. Bar Association. 1998. Minorities in the Legal Profession. 

• Florida. Supreme Court. Report and Recommendation of the Racial and Ethics Bias Study 

Commission. 1990. Reforming Practices Which Impede the Dispensation of Justice to 

Minorities in Florida. "Where the Injured Fly for Justice". 

• Georgia. Georgia Bar Association. 1999. The Georgia Diversity Program Newsletter, 

October. 

• McColl, Hugh L. Equal Employment Opportunity and Affirmative Action Policy Statement. 

"Harassment Policy". Letter to employees of the Bank of America. 

• Rogers, Carol Leah. 1999. Letter to Patricia MacPhee. September 17. Enclosing the 

following documents: California Minority Counsel Program brochure; Corporate and Law 

Firm Participants' Objectives; American Bar Association Minority Counsel Program Info; 

Bar Association of San Francisco Model Policies; Bar Association of San Francisco Goals 

and Timetables; Two articles about Proposition 209; List of other State Minority Counsel 

Programs; Charles Morgan's Diversity Statement of Principle; Articles about President 

Clinton's Call to Action. 

• San Francisco. The Bar Association. 1996. Goals '95 Report "Goals and Timetables for 

Minority Hiring and Advancement". Prepared by the Committee on Minority Employment. 

• Texas. State Bar. Statement of Goals of Houston Law Firms and Corporate Legal 

Departments for Increasing Minority Hiring, Retention and Promotion. Report prepared 

by the Hispanic Bar Association. 

• Commission On Opportunities For Minorities In The Profession "To Improve Opportunities 

for minorities practicing Law". Http://www.abanet.org. 

• New Jersey Department of Law: Office of Equal Opportunity. Http://www.acling.org/law 

38

• South Carolina Consolidated Procurement Code, Article 21 "Assistance To Minority 

Businesses", Revised June 13, 1997. 

• State of Wisconsin: Bureau of Procurement, VendorNet System: "Contract Compliance 

Definitions" http://vendornet.state.wi.us. 

• Wisconsin’s Contract Compliance Law, s. 16.765, Wis. Stat. 

• Wisconsin Statutes: Organization Of State Government, Chapter 16. Department of 

Administration, Subchapter 1V. Purchasing. WI St 16.765. Westlaw Topic No. 360. 

39

OFFICE OF THE ATTORNEY GENERAL 

The following offices of Attorney General were contacted: 

• California 

• Connecticut 

• Massachusetts 

• Washington 

LAW LIBRARIES 

The following law libraries were contacted: 

• Chicago 

• Florida 

• Los Angeles 

• New York 

• U.S. Court of Appeals 1 st Circuit Satellite Library 

• U.S. Courts Library 

• U.S. District Court Library 

40

ADDENDUM 

41

fostering employment equity and diversity in the nova scotia legal

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